Torture: It’s Perfectly Legal — But We Don’t Do It

Liz and Dick Cheney, Bill Bennett, Ari Fleischer, and countless other commentators have saturated the public airwaves of late ever since the Obama Administration decided to make public the Bush torture memos. These apologists for war crimes have been jawboning the issue from every conceivable angle. Why are these barbarians who defend torturing other human beings appearing on my television and radio? So far, the arguments I’ve heard in favor of torturing people are the following:

1). They say “it’s not torture” because these same techniques were used on American servicemen as part of their “Survival, Evasion, Resistance, Escape” (SERE) training and, as Liz Cheney told Norah O’Donnell on MSNBC, “We didn’t torture our own servicemen.”

But the SERE training was designed to give American servicemen skills to counter Chinese communist torture practices through resisting and learning to endure them. So the United States, by aping the Chinese’ techniques and applying them to our own prisoners, is really guilty of the same types of torture the Chinese practiced, which the U.S. condemned at the time as illegal and barbaric.

2). They say “it’s not torture” because waterboarding, the harshest of the Bush-approved interrogation techniques, is only a “quick” and “painless” way to disorient a subject like an open-fingered face slap. It leaves no lasting physical or psychological effects.

Although Sean Hannity is free to volunteer to be waterboarded in an effort to trivialize its status as “torture” but American servicemen faced court martial for waterboarding Filipinos and Vietnamese, and Japanese soldiers were executed for doing it to Americans, and sheriffs faced criminal prosecution for doing it. And American interrogators waterboarded the “high value” terrorist suspect Khalid Sheik Muhammed (KSM) 183 times in one month, averaging about six times a day, and Abu Zubaydah got waterboarded a total of eighty-three times. We’ve heard little public discussion about the effects of these techniques being used together or in tandem along with eleven days of sleep deprivation.

3). They say “it’s not torture” because Bush said unequivocally “the U.S. does not torture.”

But these statements from Bush and other former officials are simply lies to cover up what they know was a criminal act. If it were not against the law there’d be no need to lie about it. In effect, they’re saying: “It’s perfectly legal — but we don’t do it.”

4). They say their “enhanced interrogation techniques” are “lawful” because the professional lawyers were careful to limit the duration of each technique and took great pains to ensure each technique did not violate the law.

But these “lawyers” are nothing by quacks who cooked up their dreary documents under a veil of secrecy. These torture memos were not peer-reviewed by their colleagues or evaluated by any judge. Their “legal opinions” were pure sophistry and the lawyers who drew them up knew they would never hold up in court or with their peers or with the public.

5). They say it was not unlawful because the Commander-in-Chief ordered it in a “time of war.” (John Yoo was particularly fond of this argument.)

But the Joint Chiefs of Staff and the leadership of the United States military advised against using these new techniques and preferred to rely on the Army Field Manual instead of the Bush Justice Department. There was no declaration of war and even in “war time” the President does not have the right to break the law. This argument is just a repackaging of Richard Nixon’s old adage: “If the President does it then it’s not illegal.”

6). They say that it was lawful because leading Democrats in Congress were “fully” briefed about these new interrogation techniques and raised no objections.

But the very limited briefings the Bush Administration offered Congress were consistent with Dick Cheney’s contempt for that body and were thin on details. Besides, under the intelligence committee guidelines members of Congress who are briefed with classified information cannot go public or even share it with their own staffs (in fear of leaks). So what were these Congressional leaders expected to do? And if we’re asked to put the green-lighting of torture in the context of the emergency of 9-11 and the desire of preventing another attack doesn’t that argument also apply to the Congressional leaders who were briefed? And if Democrats were complicit in covering up the crime of torture who said they should be immune to prosecution because of their party affiliation? Any Democratic member of Congress who was involved in covering up these crimes should be prosecuted along with any member of the Bush Administration who did so. This is not a “partisan” issue.

7). They say these NOT-torture techniques are legitimate in any case because they “worked.” Cheney claims that “we” got “actionable intelligence” from the information from these “harsh” interrogations.

But this line of reasoning sounds like just another lie to cover up the original crime. We need to see the real concrete proof that torturing suspects provided intelligence personnel with anything other than gibberish. They say that their torture “saved lives.” Prove it. Besides, this is like hearing practitioners of genocide argue that it is legitimate because it “worked.”

8). They say it’s not torture because these were good men with the best of intentions operating in a difficult emergency environment and were aiming to save American lives.

But the road to hell is paved with good intentions and the end does not justify the means.

9). They say the post-9-11 emergency environment, complete with “chatter” about another attack, influenced their reasoning so we mustn’t question it now in a period of relative calm but put ourselves in their shoes back then.

But it is precisely in times of crisis and turmoil when we need most to stand firm behind our values and honor our laws and customs. Bush said the terrorists attacked us because “they hate our freedom” and then he turned around and threw away any semblance of morality and violated the honor and protections of our freedom: the rule of law.

10). They say it wasn’t torture because physicians and psychologists carefully monitored the situation.

But it is the physicians and psychologists who so violated their professional ethics who should be prosecuted first for playing a role in this illegal torture activity, not praised for their participation.

Finally, Liz Cheney told Norah O’Donnell on MSNBC that because Al Qaeda would “cut off an American’s head” if they took him prisoner we shouldn’t worry about torture making it more likely that U.S. personnel might be tortured in return. So, this daughter of Dick, found Al Qaeda’s practices to be an acceptable moral referent; she was arguing, in effect, that the United States should become more like Al Qaeda instead of fighting to preserve our differences. Or, like Rummy before her, she was saying that we all should pat ourselves on the back because we only torture people instead of cutting their fucking heads off.

Now, I just want to make two points:

The Torture Was Racist. This American torturing of dark-skinned Arab and Afghan prisoners was inherently racist. They never would have considered treating white northern Europeans like this with all the forced nudity, “confinement boxes,” waterboarding, and all the other kinky and sadistic abuses. It just never would have happened — (unless, of course, you can picture in your mind Lyndie England stacking up in a pyramid a bunch of naked Norwegians).

The Torture Stripped the United States of the Moral High Ground. American officials and representatives of the U.S. government forfeited the right to criticize or raise objections internationally of the human rights records and violations of other regimes and organizations — including the Taliban and Al Qaeda. The United States practicing torture undermined all the efforts of torture victims and human rights activists all over the world. In fact, the Bush Administration put the lives at risk of anyone who is fighting authoritarian regimes in the name of human rights. Former authoritarian government officials who might now be in custody awaiting trial for committing torture can use the U.S. example as they fashion their defense: “The End Justifies the Means.” And all the thugs and murderers and torturers around the globe can now point to the United States and say: “We too are torturing for our national security; we too got ‘actionable’ intelligence from our enemies; we too have the best of intentions; we too are operating in a state of emergency.” All of the torturers from the world’s worst, most brutal regimes can now rise up and proclaim their solidarity with the United States: “We Are All Americans Now!”

DISCLAIMER: The opinions expressed here are those of the individual contributor(s) and do not necessarily reflect the views of the LA Progressive, its publisher, editor or any of its other contributors.

About Joseph Palermo

Joseph Palermo is Professor of History, California State University, Sacramento. Professor Palermo’s most recent book is The Eighties (Pearson 2012). He has also written two other books: In His Own Right: The Political Odyssey of Senator Robert F. Kennedy (Columbia, 2001); and Robert F. Kennedy and the Death of American Idealism (Pearson, 2008). Before earning a Master’s degree and Doctorate in History from Cornell University, Professor Palermo completed Bachelor’s degrees in Sociology and Anthropology from the University of California, Santa Cruz, and a Master’s degree in History from San Jose State University. His expertise includes the 1980s; political history; presidential politics and war powers; social movements of the 20th century; the 1960s; and the history of American foreign policy. Professor Palermo has also written articles for anthologies on the life of Father Daniel Berrigan, S.J. in The Human Tradition in America Since 1945 (Scholarly Resources Press, 2003); and on the Watergate scandal in Watergate and the Resignation of Richard Nixon (CQ Press, 2004).

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